A court deciding whether a child should return under the Hague Convention may face a separate asylum claim concerning that same child. G v G explains why deciding the return application and putting a return order into effect are two different steps.
One parent brought the child to England without the other parent’s consent and sought asylum, naming the child as a dependant. The other parent applied for the child’s return under the 1980 Hague Convention. The parent opposing return relied on the grave-risk exception and the child’s objections. The Supreme Court was concerned with the relationship between the two proceedings.
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Decisions below
Lieven J, told that G had made her own asylum application, stayed the Hague proceedings. She considered that a return could not take place until the asylum claims were decided, that the Secretary of State was better placed to investigate the facts, and that disclosure of the asylum documents was not then appropriate. The Court of Appeal, told that G was only a named dependant, lifted the stay. It held that recognised refugee status, or a separate pending asylum application by the child, barred implementation of a return order, but that merely naming the child as a dependant did not. It said that any bar was to implementation only, and that the High Court should generally be slow to stay a Hague application before determining it.
A dependant’s claim and non-refoulement
Lord Stephens held that a request for protection naming a child as a dependant can, and generally should, be understood objectively as a request by the child as well. The grounds raised by a parent may also affect the child, who cannot be expected to decide independently whether to apply. If the child is an applicant, returning the child before the claim is determined would pre-empt the asylum decision. This gives effect to the principle of non-refoulement, which protects a refugee against being sent back to face persecution.
The claim remains pending until the domestic appeal process ends. An in-country appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 bars implementation. Returning the child meanwhile would make that remedy ineffective: the child would no longer be outside the country of nationality, and a successful appeal could not secure the child’s return. An out-of-country appeal does not have that effect. The Court noted that the time taken by in-country appeals may seriously undermine the Hague Convention and suggested that a legislative solution be considered urgently.
What the Family Court may still do
The second ground failed. The prohibition is only on implementation. The High Court may determine the Hague application and make a return order. It must not decide refugee status, but it may make findings on facts that overlap with the asylum claim, including under article 13(b). Those findings do not bind the Secretary of State. Article 20 does not require the court to await the asylum decision; human-rights concerns of this kind are addressed through article 13(b). If the asylum outcome later requires reconsideration, the Family Court can review a Hague order.
The third ground also failed. The Court of Appeal was right that the High Court should generally be slow to stay Hague proceedings. That approach serves the Convention’s requirements of expedition and priority, which also apply to related asylum steps, and allows a reasoned decision to inform the Secretary of State. The factors identified by the Court of Appeal for exercising the discretion remain appropriate.
Co-ordination
The Court emphasised that the two processes must operate together. It suggested, without laying down binding procedure, early liaison with the Secretary of State, joinder of the child, controlled disclosure, expedition of the asylum claim, and assignment of linked asylum appeals or judicial reviews to judges with family experience. Those suggestions were for consideration by the High Court and others after consultation.
Verdict: The Supreme Court allowed the mother’s appeal in part. A pending asylum application by the child, including a pending in-country appeal, barred implementation of a return order. It did not require a stay of the Hague proceedings. The return application went back to the High Court. The Supreme Court decided neither the asylum claim nor whether the child should return.
Source: G v G [2021] UKSC 9
